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Supreme Court rejects theory giving state legislatures unchecked power over elections

JUANA SUMMERS, HOST:

We start this hour with news from the U.S Supreme Court. Today, it repudiated the most extreme form of a controversial legal theory that would have radically reshaped the way American elections are conducted. It would have given state legislatures virtually unchecked power to decide election rules. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: At issue in the case was a decision by the North Carolina Supreme Court holding that the state legislature had violated state constitutional provisions barring partisan gerrymanders. The state court ultimately drew new district lines for the 2020 election, and the GOP-dominated state legislature appealed to the Supreme Court, advancing a relatively new idea called the independent state legislature theory. It's based on the federal Constitution's provision delegating to state legislatures the power to set the time, place and manner of elections. The North Carolina state legislature read that provision to mean that only the state legislature could make election rules, regardless of state constitutional provisions and without meaningful review by the courts. But today the Supreme Court rejected that argument by a 6-3 vote.

Writing for the court majority, Chief Justice John Roberts said that the Constitution's election clause, quote, "does not insulate state legislatures from the ordinary exercise of state judicial review." To the contrary, he said, state legislative power is constrained by the federal and state Constitutions as well as ordinary state laws. At the same time, however, Roberts said that in overseeing election provisions, state courts, quote, "do not have free reign to exceed the ordinary bounds of judicial review." How to know when courts do exceed that power the court majority didn't say, leaving for another day the task of articulating a standard for determining when a state court goes too far. Election experts disagreed on the effect of today's ruling. NYU law professor Richard Pildes.

RICHARD PILDES: So they rejected that extreme view, and that's highly significant. But at the same time, they endorsed a weaker version of this independent state legislature doctrine. And this is going to sort of hang over the 2024 elections.

TOTENBERG: UCLA law professor Richard Hasen goes further, noting that today's decision gives the federal courts a lot of new power over state courts.

RICHARD HASEN: They've preserved for themselves the right to be the ultimate arbiter of whether state courts have gone too far. And this harkens back to Bush v. Gore in the 2000 election, when three justices on the court took the view that the Florida state court went too far when it ordered a partial recount of votes.

TOTENBERG: Hasen predicts it won't be just the Supreme Court that gets these election cases. You can easily imagine election losers running to friendly lower court judges hoping for a second bite at the apple, he says.

HASEN: And I think it's going to create mischief. This is, you know, a time bomb waiting to explode.

TOTENBERG: But others disagree. University of Iowa law professor Derek Muller.

DEREK MULLER: I think there's going to be a lot of litigation, but I question how successful that litigation will be.

TOTENBERG: J. Michael Luttig, a former federal judge with decidedly conservative views, saw the court's opinion as a clear win.

J MICHAEL LUTTIG: Today's decision was a resounding, reverberating victory for American democracy.

TOTENBERG: University of Illinois law professor Vikram Amar was among a group of liberal and conservative scholars who filed a brief in today's case.

VIKRAM AMAR: This is a very forceful repudiation of the premises of the independent state legislature idea. I think what this case does is it reaffirms the flexibility that states have to confer power in different institutions in a way that deals with the challenges confronted by modern democracy.

TOTENBERG: Indeed, in his opinion for the court today, Chief Justice Roberts went out of his way to reaffirm a decision that he dissented from eight years ago, a decision that allows states to deal with the problem of partisan gerrymandering by creating independent redistricting commissions. That said, there were a lot of loose threads still hanging after today's ruling. The Roberts opinion pointed to Chief Justice Rehnquist's concurring opinion in Bush v. Gore as well as the dissenters' different definition in their opinion. In the end, though, the chief justice said, we do not adopt these or any other test by which we can measure state court interpretations of state election laws. We hold only that state courts may not transgress the ordinary bounds of judicial review. And finally, while technically affirming the judgment of the North Carolina Supreme Court, the justices declined to say if the state court was right.

Nina Totenberg, NPR News, Washington.

(SOUNDBITE OF THE BEATNUTS' "WILD, WILD, WHAT!") Transcript provided by NPR, Copyright NPR.

Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.